The structure of the Judicial Services Commission (JSC) is compromising its accountability and obstructing the creation of an independent judiciary, says Professor Murray Kellam, a former Australian Supreme Court Justice who has spent several weeks observing the group.
The UNDP brought Kellam to the Maldives to observe the JSC based on a recommendation in a report by the International Commission of Jurists (ICJ) that suggested the commission be subjected to independent outside oversight.
As well as a former Justice of the Supreme Court of Victoria, Kellam is the current Chief Commissioner of the Tasmanian Anti-Corruption Commission and also has extensive experience assisting with the development of legal systems in countries such as Burma and Bangladesh.
He has also been appointed an Officer of the Order of Australia, an award given for distinguished service of a high degree to Australia or humanity at large.
“I think there’s a real problem when you’ve got members of both the executive and the legislative body administering judicial affairs,” Kellam said, on conclusion of his visit to the Maldives.
“You have the Speaker, Attorney General and an MP sitting in judgement on their own recommendations. That situation doesn’t need describing any further.”
Kellam said his observations were not intended to be critical of the members of the JSC, but rather to assist in the development of an independent and respected body.
In other countries it was usual for the Chief Justice to chair the body responsible for judicial accountability, but the members were made up of respected people from the community “rather than those allied to the executive or legislature.”
“The process in your Constitution here is that [in the event of] gross misconduct and gross incompetence, the Majlis (parliament) has the job of dismissing them, and that’s consistent with other places in the world. But the problem is that the body making the recommendation is also the membership.”
Kellam was provided with full access to the JSC’s meetings and files during his visit, however he acknowledged that language was a barrier – most significantly, the lack of official English translations of most legislation.
“The unofficial translation of the Constitution is pretty good, but I have doubts about the accuracy of the translation for the JSC Act. The UNDP assisted, but the [language gap] makes it pretty difficult.”
However, Kellam said that he agreed with the ICJ’s recommendation that parliament should evaluate the JSC “and ensure it operates more transparently.”
“There may be an argument that the appointments and complaints processes [for judges] should be separated,” he said. “At the moment it appears that the expectations of the authors of the constitution are not being met.”
There had been, he noted, a requirement for the JSC to undergo training, ”but that was removed by the Supreme Court and subsequently by the legislature.”
Urgent legislation required
Beyond a review and possible reform of the JSC by parliament, the Majlis needed to urgently pass a Criminal and Civil Code, a Penal Code, and an Evidence Act, as currently, “the courts have no guidance as to the exercise of their powers under the constitution.”
“These legislative enactments ensure consistency on the part of the courts and a proper legal basis for the process of litigation,” he said, adding that under the current circumstances, “I can’t see how the courts can operate. The importance of the legislature passing such legislation cannot be overstated.”
As for oversight, the parliament, he said, was entitled to take an interest in the functioning of the judiciary, as the courts were funded by public expenditure.
However, Kellam did mirror the concerns of the ICJ at the interference of the executive, and particularly, the “the extra-constitutional use of the Maldives National Defence Force and police and defiance of court orders.”
He noted the ICJ’s concerns over public statements of members of government meeting with judges and members of parliament imploring the President to ignore both the courts and the legislature: “Actions such as this brought Hitler to power,” he warned.
Judges needed to be able to make decisions contrary to interests of the executive, and should not be subject to pressure from the politically powerful, commercially powerful or any other specific social interest groups.
“I have in my own career made decisions the government was extremely unhappy with – but they did what they were told in due course, because that’s the way the rule of law operates.”
At the same time, “‘Rule of law’ does not mean ‘rule of judges’. Judges are not free to do as they wish. They are subject to the Constitution and the laws enacted by parliament. It is not their role to make disparaging
remarks about parties, witnesses who appear before them, or to send signals to society at large in order to intimidate and undermine other basic freedoms such as freedom of expression.
“Respect is not gained through coercive use of power. The judiciary earns respect by its performance and its conduct,” Kellam said.
Framework in place
The Maldives’ Constitution provided an excellent model for an independent judiciary, “much better than the ones in many countries I’ve worked in,” Kellam said.
“There was quite clearly a real endeavour to set up accountability mechanisms, such as the JSC, Anti-Corruption Commission (ACC) and provision for an independent prosecutor – a really significant step.
“But having a model is one thing, executing the plan is another. In the end that depends on the calibre and integrity of people who run these organisations. They need to set the gold standard in terms of behaviour, conduct and transparency.”
Paying judges generously was a significant part of the equation, he said, recalling a judge he met in Cambodia who drove taxis at night to avoid having to accept bribes.
Australia, he commented, had never had a judge convicted of bribery.
“Judges misbehave in Australia just like elsewhere, but we do not have corruption. I think that’s a reflection of accountability, but also a significant reflection of the fact that they are well-paid. As a judge in Australia you would have to be extremely silly [to accept a bribe], because the risk of losing your salary and all your pension entitlements is simply too high.”
Transparency trumps nepotism
In both his interview with Minivan News and a lecture held on completion of his visit to the Maldives, Kellam repeatedly emphasised the importance of independence.
It was not, he said, necessarily a obstacle to independence that the Maldives was a small country with myriad family, political and business connections.
“I chair the Anti-Corruption Commission in Tasmania, a state with a population of 500,000 people,” he said. “Many families have been living there a very long time, and everyone knows everyone else which is a reason why they brought an outsider like me to chair their Anti-Corruption Commission.
Transparency, he said, was the answer to the problem, and was as much a defence for those drafting contracts with those they knew as a means of mitigation corruption.
“There should be a declaration at the start of meetings, where interests should be stated,” he said.
“If you are awarding a contract to your brother-in-law, which can happen in Tasmania, it must be on the table. The person awarding contract should make the declaration. It must be a similar problem for judges in island courts here – judges here know the islanders, but you can’t have them disqualifying themselves.
“We have a jury system in Australia, and in a town with a population of 20,000 the jury will know all the victims and the witnesses. The important thing is that there is transparency and it is on the stable.
“Sunlight is the best antiseptic. The real problem of perception happens when these things are not out in the open – when they are done under the table, and somebody says ‘Hang on, he’s related or they had dinner the other week.’ If it is in public, decisions can be made impartially. If it’s disclosed you can look at the tender process and say ‘Not withstanding that this person is the uncle of the person delivering on the contract, on the face of it this is transparent.’ That’s entirely different to somebody awarding a contract to a relative behind closed doors.”
Rulings had to also be open to public scrutiny, and actively published and subjected to public analysis. Judges and their verdicts were open to scrutiny and criticism, Kellam said, and in Australia it was understood that judges did not pursue cases of defamation against them.
The economic case for justice
An impartial judicial system was a key factor in encouraging foreign investment, Kellam said, and could have a direct and significant impact on the economy.
This was something that Singapore recognised 15 years ago, he said.
“They understood the value of a civil system that is incorruptible and competent. They spent a lot of money on their judiciary and Transparency International now rates their civil legal system as one of the best in the world.
“Singapore realised that one of the best ways to attract investment was to have a system whereby international investors knew they would get a fair go in domestic courts. If you look at the circumstances in other parts of the world where investors have no confidence in the judiciary, that deters investment and takes it offshore. They’ll go somewhere else.
Citing Adam Smith, considered one of the founders of modern capitalism, Kellam observed that “Commerce and manufacturers can seldom flourish long in any state which does not enjoy a regular administration of justice, in which people do not feel themselves secure in possession of their property, in which the faith of contracts is not supported by law.”
As a foreign investor, Kellam said, “you want to know that contact you enter into with domestic partners will be understood and enforced by courts if there is a breach. You want courts to judge you impartially – you don’t want to be discriminated against because you are a foreigner.”
“Secondly, it’s no good getting judgement if no there is enforcement – which is a major factor in developing countries. Sure you can get a judgement, but it’s not worth the paper it’s written on because there is no process for getting it enforced, and you can’t turn judgements into anything productive.”
Singapore had recognised this, and become not only a hub for foreign investment but also a regional hub for commercial arbitration.
“People from around the region will use Singapore as a place of law and business,” Kellam observed.
“The constitution sets up [an independent judiciary] for principled reasons. But there are not only good arguments for these in terms of principle, there are very good economic arguments. But the judges have got to understand that, and they’ve got to build it.”
Perhaps tellingly, President’s Member of the JSC Aishath Velezinee observed on her blog that “not a single member of the Judicial Service Commission (except for myself) or staff attended Professor Kellum’s lecture.
“What cannot be ignored is that neither the JSC nor the judges have the willingness and interest or the knowledge and capacity to reform the judiciary in accordance with the Constitution, despite the rhetoric.”